Commonwealth v. Carrillo-Diaz

• Decision Date: 09 April 2013
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Felix CARRILLO–DIAZ, Appellant.
• Court: Pennsylvania Superior Court

64 A.3d 722

2013 PA Super 75

COMMONWEALTH of Pennsylvania, Appellee

v.Felix CARRILLO–DIAZ, Appellant.

Superior Court of Pennsylvania.

Submitted March 11, 2013.

Filed April 9, 2013.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., WECHT, J., and COLVILLE, J.^*

OPINION BY STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following the revocation of Appellant's probation. We affirm.

The relevant facts and procedural history have been aptly set forth by the trial court, in part, as follows:

From June to September 2008, Appellant was engaged in a ... sexual relationship with [M.S.]. At that time, Appellant was thirty-three [years old] and [M.S.] was fourteen [years old]. During the course of their relationship, Appellant and [M.S.] engaged in vaginal and oral sex approximately twenty times.

On June 24, 2010, Appellant pled no contest to Statutory Sexual Assault. After waiving presentence investigation and mental health reports, he was sentenced to a term of nine to twenty-nine months incarceration followed by five years of reporting probation supervised by the Sex Offender Unit. Appellant was ordered to have no unsupervised contact with any children under the age of eighteen except for his own children, to stay away [from] [M.S.], to gain employment, and to perform twenty hours of community service. The Court advised Appellant that if he violated his probation or parole, he would receive a state sentence.

Appellant appeared before the Court on February 16, 2012, for a probation violation hearing. He had tested positive for marijuana on 8/16/2011 and 9/16/2011. In addition, since beginning treatment for sex offenders on 12/14/2011, Appellant missed three consecutive sessions on 12/21/2011, 12/28/2011, and 1/4/2012, causing him to be discharged for noncompliance. At the violation of probation hearing, the Court thoroughly questioned Appellant's probation officer regarding Appellant's employment, response to treatment, and overall conduct. It became evident in light of information from his previous employer (via phone) and from a doctor at the treatment facility (via an email from the doctor to the probation officer) that Appellant misled the Court regarding his employment and his attendance at treatment: contrary to his assertions that he missed treatment sessions because he arrived there from work too late to be admitted, in actuality he had stopped showing up for work by that time and never arrived at the treatment facility. The Court found Appellant to be in violation of the terms of his probation, revoked his probation and sentenced him to one to two years state incarceration, followed by six years of reporting probation.

Trial Court Opinion filed 8/14/12 at 1–2 (citations to record omitted).

On March 5, 2012, Appellant filed a motion seeking to file a post-sentence motion nunc pro tunc and presenting various discretionary aspects of sentencing claims. By order filed on March 6, 2012, the trial court permitted Appellant to file his post-sentence motion nunc pro tunc¹ but denied the motion. This timely appeal followed on March 16, 2012, and all Pa.R.A.P. 1925 requirements have been met.

On appeal, Appellant's sole contention is the lower court erred when it imposed a sentence without ordering a pre-sentence investigation report, or in the alternative, failing to give a reason on the record for not ordering such a report.

This issue presents a challenge to the discretionary aspects of Appellant's sentence. See Commonwealth v. Flowers, 950 A.2d 330 (Pa.Super.2008). Thus:

Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006) (citations omitted).²

Here, Appellant filed a timely notice of appeal, and pursuant to the trial court's discretion, preserved his sentencing claim in a nunc pro tunc motion for reconsideration of sentence. See Malovich, supra. In addition, Appellant has included in his brief a separate statement of reasons for allowance of appeal. Id. Moreover, we conclude Appellant's claim presents a substantial question permitting our review. See Commonwealth v. Kelly, 33 A.3d 638 (Pa.Super.2011); Flowers, supra.

The Pennsylvania Rules of Criminal Procedure vest a sentencing judge with the discretion to order a pre-sentence investigation (PSI) as an aid in imposing an individualized sentence. Specifically, Pa.R.Crim.P. 702 provides, in relevant part, the following:

702. Aids in Imposing Sentence

(A) Pre-sentence Investigation Report

(1) The sentencing judge may, in the judge's discretion, order a pre-sentence investigation report in any case.

(2) The sentencing judge shall place on the record the reasons for dispensing with the pre-sentence investigation report if the judge fails to order a pre-sentence report in any of the following instances:

(a) when incarceration for one year or more is a possible disposition under the applicable sentencing statutes[.]

Pa.R.Crim.P. 702(A)(1),(2)(a) (bold in original).³

As this Court has held:

The first responsibility of the sentencing judge [is] to be sure that he ha [s] before him sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant. Thus, a sentencing judge must either order a PSI report or conduct sufficient presentence inquiry such that, at a minimum, the court is apprised of the particular circumstances of the offense, not limited to those of record, as well as the defendant'spersonal history and background....The court must exercise ‘the utmost care in sentence determination’ if the defendant is subject to a term of incarceration of one year or more[.]

To assure that the trial court imposes sentence in consideration of both ‘the particular circumstances of the offense and the character of the defendant,’ our Supreme Court has specified the minimum content of a PSI report. The ‘essential and adequate’ elements of a PSI report include all of the following:

(A) a complete description of the offense and the circumstances surrounding it, not limited to aspects developed for the record as part of the determination of guilt;

(B) a full description of any prior criminal record of the offender;

(C) a description of the educational background of the offender;

(D) a description of the employment background of the offender, including any military record and including his present employment status and capabilities;

(E) the social history of the offender, including family relationships, marital status, interests and activities, residence history, and religious affiliations;

(F) the offender's medical history and, if desirable, a psychological or psychiatric report;

(G) information about environments to which the offender might return or to which he could be sent should probation be granted;

(H) supplementary reports from clinics, institutions and other social agencies with which the offender has been involved;

(I) information about special resources which might be available to assist the offender, such as treatment centers, residential facilities, vocational training services, special educational facilities, rehabilitative programs of various institutions to which the offender might be committed, special programs in the probation department, and other similar programs which are particularly relevant to the offender's situation;

(J) a summary of the most significant aspects of the report, including specific recommendations as to the sentence if the sentencing court has so requested.

[While case law does not] require that the trial court order a pre-sentence investigation report under all circumstances, the cases do appear to restrict the court's discretion to dispense with a PSI report to circumstances where the necessary information is provided by another source. Our cases establish, as well, that the court must be apprised of comprehensive information to make the punishment fit not only the crime but also the person who committed it.

Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.Super.2000) (en banc) (citations, quotation, and quotation marks omitted). See Kelly, supra.

Although Rule 702(A)(2) provides the requirement to document the reasons for not ordering a pre-sentence report is mandatory, in Flowers, this Court made clear that sentencing courts have some latitude in how this requirement is fulfilled. Citing to Goggins, we stated that “technical noncompliance with the requirements of Rule 702(A)(2) might have been rendered harmless had the court elicited sufficient information during the colloquy to substitute for a PSI report, thereby allowing a fully informed sentencing decision[.]”” Flowers, 950 A.2d at 333 (citation omitted). See Kelly, supra.⁴

In the case sub judice, Appellant was sentenced without a PSI, and at the time of sentencing, the trial court did not state any reasons for dispensing with the PSI. However, in its Pa.R.A.P. 1925(a) opinion, the trial court judge provided the following reason for dispensing with...